Signed Affidavit is Close Enough for Will to be Valid

Posted By Davis & Hoss, pc || 29-Dec-2011

The TN Court of Appeals reversed Chancellor Jerri S. Bryant, Polk County, and found that a will was validly executed. At issue was whether a document was a will at all. The document was not signed at the end, but the following document, the affidavit to the will, was properly signed. Chancellor Bryant found no will to exist without the appropriate signature on it; therefor an affidavit purporting to support the will was meaningless--if no will existed in the first place.

The Appeals Court saw it differently.

The unfilled-in space in the document is interesting. It seems plausible to us that this space was intended to contain the Deceased’s printed name and not his signature. If this is the case – and we believe it is – then the second page simply fails to have a line for the Deceased’s signature. We believe this bolsters our position, hereinafter stated, that the Deceased signed the aforesaid affidavit intending to sign the Will.

The case is interesting because of the historic rigidity held position that the courts have had regarding signatures. No signature typically means no will. A mark on a document intended as a signature is sufficient, but as the proof in this case showed, if the person making the will is capable of signing his name and has in fact signed his name elsewhere in the documents, then initials or a mark is not the same as a signature or valid. Here the court followed the intent of the man signing the affidavit--he intended to sign his will--and the Appeals Court found that sufficient. The man intended to have that document be his last will, that makes sense.

The puzzling question is how could a lawyer have drafted a will without a signature line at the end of the document. From the proof, the man sat and initialed the first page and signed the following document, the affidavit to the will.